Case No: B4/2008/1308
Neutral Citation Number: [2008] EWCA Civ 1037
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE PRINCIPAL REGISTRY OF THE FAMILY DIVISION 
(MR JUSTICE RODERIC WOOD)
Royal Courts of Justice
Strand, London, WC2A 2LL

Date: Thursday, 21st August 2008

Before:

LORD JUSTICE THOMAS
and
LORD JUSTICE HUGHES
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IN THE MATTER OF B (Children)
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Mr J Furness QC and Mr A Jamieson (instructed by Messrs Rodney W Noon & Co) appeared on behalf of the Appellant.
Ms G Irving QC and Mr M Sellars (instructed by Messrs Griffiths & Hughes Parry) appeared on behalf of the Respondent.
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Judgment
Lord Justice Hughes:                         

1.	In the course of care proceedings concerning a family of eight minor children, Wood J had to make findings of fact on a number of issues.  Now, one of them concerned allegations of sexual interference with her, made by a girl who was eight rising nine.  She said that she had been interfered with by one of her older brothers.  Her younger sister said the same in relation to the older brother.  The elder of the two girls also said that similar things or at least some improper things had been done to her by a friend of her brothers who was 16 rising 17.  That young man was given leave to participate in the hearing as an intervener.  He was fully, and if I may say so, clearly highly effectively represented.  The judge found that he had engaged in inappropriate sexual behaviour with this little girl.  The young man seeks this court’s leave to appeal against that finding.  

2.	The nine children of the family ranged in age down from 19 to six at the time of the hearing.  The care proceedings did not of course affect the 19 year old but were brought in relation to all eight of the others: six boys and two girls.  The girls were the seventh and eighth of the family.  They were in other words the youngest two but for one younger son.  

3.	The grounds for seeking the care orders need not now concern us, as it seems to me, except that one perhaps should record that they were founded upon severe general parental neglect.  The case was not by any means only about sexual allegations, but certainly one part of the neglect relied upon was a failure to maintain proper boundaries of sexual behaviour and a failure by mother to deal with complaints made by the girls that they had been interfered with.  

4.	The girl in question was born in May 1999.  She was just short of her ninth birthday at the time of the hearing in April 2008.  The present applicant was born in April 1991.  He was roughly of an age with the second brother, 16 rising 17 at the time of the hearing.  It was common ground that he had been a frequent visitor to the family’s home until July 2006.  The family lived in Yorkshire until the parents separated following an incident when father was violent to mother on 29 July 2006.  Mother then took all the minor children to a refuge in another part of the country.  It was whilst they were there that on 31 August 2006 one of the workers at that establishment saw the youngest boy, then four and a half, climb onto one of the boys, then aged about ten and a half, and gyrate in a manner which gave her immediate concern.

5.	The two girls in the family were there and when asked what he was doing said that he was “shagging” his brother.  They went onto say that similar things had happened between the children both in the family home and for that matter in the refuge since.  They gave a certain amount of detail.  That was the genesis of the allegations on which the judge had to adjudicate.  However, so far as the present applicant is concerned nothing had been said at that stage even to mention his existence.  So far as he was concerned, the allegation emerged during a recorded police interview with the elder of the two girls, which was conducted a few days afterwards on 4 September 2006.  The interview, which we have seen, makes it clear that the child understood that she was there to speak about the second eldest brother, T.  T, she said, had been “humping”, “shagging” and “kissing” her and she made it perfectly clear in appropriate terms that she meant that he had been showing her what sexual intercourse was.  Later on in the interview she said that he had ejaculated on at any rate one occasion.  In the course of that interview, in an apparently casual and inconsequential manner, the girl said this:

“THERE WAS A FRIEND CALLED [TL] … NO JAYWOL AND HE DOES IT WITH HIS GIRLFRIEND AND HE DOESN’T DO IT HARD BUT… HE DOESN’T HUMP”

6.	That was the first introduction of any reference to the present applicant.  The police officer established the age of this other person and the exchange then continued as follows:

“[POLICE OFFICER]:  So he does it with his girlfriend?

[ANSWER]:  YEAH
[POLICE OFFICER]:  He humps with his girlfriend
[ANSWER]:  YEAH AND HE’S LIKE, WHEN SOMEONE HURTS HIM HE’D LIKE DECK ‘EM AND LIKE THERE’S A (INAUDIBLE) FRIEND BRETT AND HE DOESN’T DO ANYTHING, HE HELPS ME, WHEN SOMETHING GOES WRONG HE STILL HELPS ME.  IF IT’S OVER ANYWHERE HE STILL HELPS ME”

7.	Without quoting more, those two passages in the interview are at the centre of the submissions which Mr Furness QC has made on behalf of the present applicant to us, and I will return to them.  The girl went on to say in answer to this question:

“[POLICE OFFICER]:  … [J] does humping with his girlfriend
[ANSWER]:  YEAH
[POLICE OFFICER]:  And how do you know that?
[ANSWER]:  HE SHOWS ME IT”

      An answer which the girl repeated.  

8.	The conversation, as sometimes happens in these interviews, moved off onto different but related topics but the girl went on to give an account of a particular incident in a particular room in the house.  She spoke of what had happened to the clothes of both her and the applicant at the time.  She said that he had shown her what she described as “some disgusting bits” and went on to say that she meant his penis.  She gave a description of that.  She gave a description of the applicant’s backside and she further said that the applicant had “humped” her and that he had been “snogging me”.  In the context of that latter part of her description, she said where the two of them were positioned, she gave a demonstration of effectively open-mouthed French kissing, she said that he had put his tongue on hers and she added this:

“AND I STARTED WIPING MY TONGUE OFF HIS GERMS COZ IF HE HAD LIKE BLOOD AND THEN HE WIPED IT ON MY TONGUE IT WASN’T VERY NICE COZ IT’S HIS BLOOD, YOU DON’T PUT IT ON SOMEONE ELSES”

In the course of her description of the latter kissing part of her account, her reaction was expressive in facial terms and plainly one of distaste.  

9.	Now there was no independent evidence of these acts.  The applicant, when he was spoken to by the police, denied that anything of the kind had happened.  There were not any physical findings which could bear on what the child said, and, in any event, had there been any they could not have assisted with the identity of the perpetrator.  It may be that what the girl said derived some limited support from the general evidence of laxity of behaviour, including sexual behaviour, in the household to which the applicant was a regular visitor.  But it is undoubtedly correct that the allegation depended upon the reliability of the child and in the end the issue for the judge was whether she was or was not telling the truth in the police interview.  The judge, in the course of a long judgment dealing with a large number of factual issues, came to the conclusion that underlying what this child had said was a truthful description of a real experience with this applicant.  He was selective and careful in his conclusions to this extent: he directed himself that he was not satisfied with the part of the interview which referred to “humping” if by that it was meant, as was suggested, simulated sexual intercourse; in relation to that he referred to the fact that in parts of the interview the girl was asked suggestive questions.  But he was satisfied that on the balance of probabilities the kind of detail that she had given describing this applicant and the memories associated with him, including reference to his girlfriend, the physical details of which she spoke, her evident distaste for the French kissing and the like, all established on the balance of probabilities that such events had taken place.  

10.	Mr Furness’s challenge to that centres upon the first extract from the interview which I have quoted.  The substance of the point which was addressed directly by the judge is this:  in introducing the name of this young man the child had said “he doesn’t hump”.  Half a page later the police officer had asked the question not actually phrased as a question but as a proposition: “He humps with his girlfriend”, and the child had accepted it.  That is not what the child had said and, says Mr Furness, the interview is effectively vitiated by the real risk that the child has simply accepted what the responsible adult police officer was putting to her.

11.	It is clear from what I have already said that it was because of doubt about that part of the interview that the judge was not satisfied that the applicant’s behaviour had amounted to simulated sexual intercourse; the judge distinguished between that and the remaining parts of what the girl said concerning exposure and French kissing.   The question for us is, as it seems to me, whether the judge was plainly wrong to arrive at that conclusion.  If that decision of the judge is plainly wrong, I for my part am quite satisfied that this court ought to reverse it.  Mr Furness rightly accepts that the relevant test is that set out in G v G (Minors: Custody Appeal) [1985] FLR 894.  I ought to make it clear that this is not a case of the exercise of judicial discretion and it does not share with cases which are the factor that very often the judge’s task, particularly in family cases, is to make a narrow decision on the least bad solution in circumstances where it is impossible to arrive at a wholly satisfactory outcome.  This would not be exercise of discretion.  It was a decision of primary fact.  I also accept that in a case where the girl did not give oral evidence before the judge and he had to assess her evidence from the recorded police interview, the judge does not have the peculiar advantage of hearing and seeing the witness, which this court cannot replicate, which he has when he hears oral evidence.  In that sense it is true to say with Mr Furness that the court can look at the recording as the judge did.  But as Mr Furness rightly accepts, the test remains whether the judge was plainly wrong.  Unless he was, it is not open to this court simply to embark upon a rehearing of one fragment of the evidence and to make its own fresh decision on the reliability of the girl.  Otherwise a first instance hearing would be largely redundant and every case of the assessment of a recorded interview would fall to be brought to this court for decision.  Moreover the judge has the responsibility and the opportunity of setting the interview of the girl in the context of the evidence as a whole, which is one purpose of a trial such as this, extended over a number of days, and that again is an opportunity which this court does not have.

12.	  Applying that test, it seems to me that with great respect to the very persuasive way in which Mr Furness puts it, this was a case in which the judge was entitled to arrive at the conclusion that he did.  True it is that the child was young and educationally behind her peers.  She was not, it is plain, suffering from any kind of formal mental deficiency or learning disability, and the evidence was that she caught up rapidly once housed in a different environment to the original family one, but she was certainly very young.  True it is also that there had in the initial questioning of this child been a number of instances of assumptions made and leading questions asked; that had happened at the refuge and it might have happened, but nobody could tell, in the course of the discussion which the police officer had had insufficiently recorded with the child before the formal recorded interview.  But none of those discussions on any view had anything whatever to do with this applicant.  He was mentioned for the first time in the interview which was recorded, and the judge was able to see both the manner in which his name was introduced and the context.  It was, as has to be accepted, an entirely spontaneous reference to him by the child.  Whilst I accept the proposition, as did the judge, that the police officer’s subsequent question or proposition about “humping” was a misreport of what the child had said a little earlier, it seems to me that it is impossible to say other than that the judge was perfectly entitled to come to the conclusion that the remainder of what this child said was plainly such as to establish on the balance of probabilities that she was describing a real experience.  The description of a teenage penis and a teenage bottom could of course have been acquired from ordinary experiences within the family, but the judge was at the very least entitled to say that the girl’s description of the kissing episode, and particularly her reference to wiping away from her tongue whatever the applicant might have left on it, had about it the plain hallmark of an accurate and truthful historic remark.

13.	It is also to be observed that the child clearly distinguished between what this applicant had done to her and what her brother had done to her.  Equally, she had been complimentary of the applicant as someone who defended her and she had plainly demonstrated that she was not disposed simply to attribute improper sexual actions to anybody whose name came to be mentioned, as is demonstrated by her reference to the other young man called Brett.  Subject to the remaining matters which I must now deal with, it seems to me that the central submission of Mr Furness, persuasively, as I say, as it is made, does not demonstrate that the judge was wrong to reach the conclusion that he did, and, so far as it is relevant, for what it is worth, having seen the video, I can well understand why he did reach the conclusion that he did.

14.	There are other matters which I must address.  Mr Furness alleges a specific error of approach by the judge.  It is suggested that what he did was, first, to evaluate the evidence of the girl and reach a conclusion about it, and only then go on to consider the fact that the applicant had denied the complaint.  Rather, says Mr Furness, the judge should have considered the whole of the evidence together.  That submission really arises from no more than the structure that the judge chose to adopt in the course of a very long judgment.  This judgment runs in the end to some 64 pages.  When one is delivering a judgment of that length, decisions simply have to be made about the structure.  Something has to go first.  The judge chose to set out the evidence in relation to the girl and then various comments about it before he came to the evidence of what the young man had said, but there is simply no possibility that, in assessing the girl’s evidence, the judge had forgotten that the applicant denied what she was saying.  That was the whole reason why he was being asked to decide the issue.  

15.	The next matter arises from the fact that this girl’s interview had been examined by Dr Kirkland Weir, who has considerable experience in analysing and advising on childish allegations of sexual and other abuse.  His principal expert evidence was upon the present condition and needs of the children and upon the attitude and capabilities of the parents, especially mother.  In addition to his other expert evidence in the case, he had been instructed to and did express his view about the reliability of this girl and others by reference to particular factors.  Opinions differ as to how useful expert analysis of the credibility of a complainant child is, at least in a case in which there is nothing particularly unusual about the child, and how useful it is in a case which, so far as I can see, had nothing in it which took it outside the ordinary experience of any judge who routinely tries these cases, is a matter of debate.  However, what is important is that the decision was, as the judge recognised, one entirely for him and not for Dr Weir.  It is the fact that Dr Weir chooses to express his conclusions on a seven point scale, ranging from “very probably true”, through “probably true”, “possibly true”, “neutral”, “possibly false”, “probably false” and “very probably false”.  This manner of expressing his conclusions only underlines the fact that it is not for the expert to decide whether the allegation is proved or not but rather for the judge.  His chosen method of expressing himself is a matter for him and it does not reflect the law which the judge has to apply.  The law is resoundingly restated by the House of Lords since this decision of the judge in In Re B (Children) [2008] UK HL 35 is that the decision must be reached on the balance of probabilities, neither more nor less; the judge does not and should not graduate his conclusions beyond that.

16.	In the present case Dr Weir had said of this girl’s allegation that it was, at least in part in his view, “probably true”.  What Mr Furness says is that in agreeing with this conclusion the judge was wrong to treat it as crossing the balance of probabilities threshold of proof, since it left Dr Weir’s state of mind somewhere short of “very probably true”.  The judge was, in other words, says Mr Furness, wrong to accept that Dr Weir’s conclusion meant the point that the matter was proved on the balance of probabilities, because in Dr Weir’s scale there was a further category above and beyond.  That argument simply exposes the fact that Dr Weir was not doing the judge’s job.  Whether Dr Weir’s seven point scale leaves room for debate about what degree of probability is implicit in “probably true” or “very probably true” remains open to question.  For my part, one would have thought that “probably true” seems incapable of meaning anything less than that the allegation is proved on the balance of probabilities.  But even if there is room for debate about what Dr Weir meant, it is absolutely clear that the judge applied the correct test.   He  directed himself with considerable precision as to the standard  of  proof  and  as  one would expect in accordance with Re H and R (Child Sexual Abuse: Standard of Proof) [1996] 1 FLR 80, then  unconfirmed by In Re: B.  If anything, in faithfully rehearsing as Lord Nicholls had in Re H and R the well known passage from Hornal v Neuberger Products Ltd [1957] 1 QB 247, the judge directed himself in terms which were somewhat more favourable to the applicant than should now be done, following In Re: B. 

17.	It follows from all of that that, as it seems to me, there is no error of approach in the judge, and secondly that it is impossible to stigmatise his conclusions on this girl’s interview as plainly wrong.  He was, as it seems to me, entitled to reach the conclusion that he did.  It is no doubt an unhappy conclusion for the applicant, as the judge clearly recognised.  It is an overstatement to say that it is much the same as a conviction in a criminal court, but it is certainly true that it may have some implications for this young man, even in the context in which the acts were committed.  But that does not relieve the judge from arriving at the conclusion on the evidence.  He addressed himself to the evidence in the proper manner, and he was, as it seems to me, entitled to come to the conclusion that he did.  I would for that reason refuse this application.

Lord Justice Thomas:

18.	Despite the clear and succinct argument of Mr Furness QC on behalf of the applicant, submissions which were reflective of the incisive cross‑examination of Dr Weir in relation to the child’s interview during the trial, he has certainly not persuaded me that the judge was wrong, let alone very seriously wrong.  

19.	For the reasons that my Lord has so eloquently stated in the course of his judgment, I too, therefore, agree that this application should be refused.

Order: Application refused